Lawyers Manual - Unified Court System

Litigating Custody and Visitation 69
NYSBA argues that it is the lawyers’ responsibility to “avoid actions or
positions based on pre-conceived notions about sexual, racial or class roles or
stereotypes and seek to protect the child’s interests without trying to impose the
attorney’s own value system or sociological theories on the child or family.” 48
This statement holds particular significance in domestic violence cases. The
dynamics of domestic violence and its impact on children has been recognized
and codified by the legislature and case law; it is not a sociological theory upon
which law guardians can ruminate. Law guardians, like many people, may have
preconceived notions or stereotypes about domestic violence that should be
overcome. The NYSBA standards thus stand for the proposition that law guardians
must investigate facts, participate fully in the proceedings, and take a position. 49
Referring to them, you may ask that the law guardian be specifically appointed
on any concurrent family offense case so that he or she can participate in, or at
least observe, those proceedings in order to understand the history of domestic
violence and its impact on the child.
Courts have also addressed the role of the law guardian. In Koppenhoefer v
Koppenhoefer, the Appellate Division held that the failure of the law guardian to
take an active role in the proceeding was grounds for vacatur. 50
In Wissink v Wissink, 51 the law guardian supported the father as the custodial
parent because that was what his client said she wanted. This position appears to
comply with the strict advocacy approach defined by the LGAC. However, the
law guardian ignored the history of domestic violence perpetrated by the father
against the mother and did not understand the dynamics. The Appellate Division
made clear that it was the responsibility of the law guardian to understand the
dynamics of domestic violence, to apply that understanding to the adolescent
girl’s denigration of her abused mother and her stated desire to reside with her
abusive father, and to advise the court accordingly.
Lawyers for domestic violence victims have reported that too often law
guardians assigned to represent their client’s children have disregarded the
domestic violence in spite of the statutory mandate and have regarded their
clients’ allegations as suspect even in the face of strong evidence supporting the
victim’s account. When the law guardian’s bias is clear, it may be necessary to
move to recuse him or her. Such an effort may be an uphill battle, however. In
Eli v Eli, 52 the court denied a motion for the recusal of the law guardian based
on bias, holding that disqualification will only be granted upon a showing of
one or more of the following: (1) the law guardian’s violation of the Code of
Professional Responsibility; (2) a violation of the Rules of Judicial Conduct; (3)
a dereliction of the law guardian’s duties to the children or the court; or (4) the